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R v Woosup[2022] QCA 270

SUPREME COURT OF QUEENSLAND

CITATION:

R v Woosup [2022] QCA 270

PARTIES:

R

v

WOOSUP, Larry Joe

(appellant)

FILE NOS:

CA No 29 of 2022

DC No 90 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Cairns – Date of Conviction: 4 November 2021 (Morzone QC DCJ)

DELIVERED ON:

Date of Orders: 14 November 2022

Date of Publication of Reasons: 23 December 2022

DELIVERED AT:

Brisbane

HEARING DATE:

14 November 2022

JUDGES:

Morrison and Flanagan JJA and Applegarth J

ORDERS:

Date of Orders: 14 November 2022

  1. Appeal allowed.
  2. The conviction dated 4 November 2021 be set aside.
  3. Retrial is ordered.

CATCHWORDS:

APPEAL AND NEW TRIAL – NEW TRIAL – IN GENERAL AND PARTICULAR GROUNDS – PARTICULAR GROUNDS – MISDIRECTION OR NON DIRECTION – directions to the jury regarding fraud – directions to the jury regarding dishonesty – directions to the jury regarding Indigenous custom – where the appellant was a native title applicant – where the appellant entered into an agreement on behalf of the native title group – where the appellant was found guilty of fraud with respect to the agreement on the basis that he did not consult the native title group prior to entering into the agreement – where the appellant gave evidence that he believed that he had authority to enter into the agreement – whether the learned trial judge failed to adequately direct the jury as to how to determine whether the appellant was dishonest

Criminal Code (Qld), s 408C(1)(d), s 408C(2)(d)

R v Dale [2012] QCA 303, cited

R v DBV [2021] QCA 227, cited

R v Lyons [2021] QCA 136, cited

R v Orchard [2018] QCA 58, cited

R v Perrin [2018] 2 Qd R 174; [2017] QCA 194, cited

COUNSEL:

M J Jackson for the appellant

C W Wallis for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant

Director of Public Prosecutions (Queensland) for the respondent

  1. [1]
    MORRISON JA:  I have had the considerable advantage of reading the draft reasons prepared by Flanagan JA.  His Honour’s reasons reflect those of my own for joining in the orders made on 14 November 2022.
  2. [2]
    FLANAGAN JA:  After a seven day trial before Judge Morzone QC, the appellant was convicted of two counts of fraud pursuant to s 408C(1)(d) and s 408C(2)(d) of the Criminal Code.
  3. [3]
    The appellant appeals against his convictions on the following ground:

“The learned trial judge failed to adequately direct the jury to decide how the nature of the appellant’s knowledge, belief or intent was dishonest and that occasioned a miscarriage of justice.”

  1. [4]
    At the conclusion of the hearing of the appeal on 14 November 2022 the Court made the following orders:
  1. The appeal is allowed;
  2. The convictions dated 4 November 2021 be set aside; and
  3. A re-trial is ordered.

These are my reasons for joining in the making of those orders.

Factual overview

  1. [5]
    The appellant is a traditional owner of land situated on the western side of Cape York Peninsula, known as Ankamuthi Country.  The prosecution alleged that the appellant dishonestly obtained two sums of money, $110,000.00 (count 1) and $95,000.00 (count 2) by entering into an agreement with Gulf Alumina Limited on 4 December 2013 (“2013 Agreement”).  The central allegation was that the appellant was not authorised by the Ankamuthi community to enter into this agreement which concerned a proposed bauxite mine
  2. [6]
    The appellant first became involved in seeking to register a native tile claim in 1991.  The appellant assisted his father, Arthur Woosup, who was a senior initiated Ankamuthi man, with the claim.  To the appellant’s knowledge his father was the only living initiated Ankamuthi man at that time.  The original native title determination application was filed in 1998.  The original native title claimants were the appellant’s father, his father’s brother, Silas Woosup, Robert Dick who was a cousin of the appellant’s, Beverley Tamwoy and the appellant.  A number of anthropological reports were obtained for the purposes of establishing both connection and cultural lineage.  One of the anthropologists involved was Dr Fiona Powell.  The 1998 native title determination application identified five apical ancestor families constituting the native title claimant group.
  3. [7]
    The appellant’s father died in 2005 followed by the deaths of Silas Woosup and Robert Dick.  At the time of entering into the 2013 Agreement, there were only two surviving registered native title claimants from the 1998 claim.  They were the appellant and Beverley Tamwoy.  The appellant was aware of other persons asserting native title as part of the Ankamuthi people, but as at December 2013 no other native title determination application had been registered.  The appellant and Ms Tamwoy were therefore the only two registered native title claimants for the Ankamuthi people.
  4. [8]
    In early 2010, through the auspices of the National Native Title Tribunal, the Cape York Land Council representative body unsuccessfully sought to negotiate an indigenous land use agreement with Gulf Alumina.  The appellant attended these negotiations with others, including his nephew, Charles Woosup as “Warangkula, Tjungundji and Seven River Ankamuthi representatives”.  According to the appellant, Charles Woosup was not part of the original native title group.  He was however, part of a second group involved in a native title claim which had been submitted by the Cape York Land Council.  This claim was not registered until 2014.
  5. [9]
    After the unsuccessful 2010 negotiations, the appellant engaged an accountant, Kevin Wone, for the purposes of establishing the Ankamuthi Western Cape Community Trust of which the appellant was the sole trustee.  The trust deed is dated 29 June 2010.  In a letter dated 11 June 2010, following a meeting with the appellant, Mr Wone set out his understanding of the situation, including that the Ankamuthi traditional owner group were presently in negotiations with Gulf Alumina with respect to an agreement for Gulf Alumina to mine bauxite on the group’s traditional country.  In this letter, Mr Wone advised as follows:

“Following on from that each individual contract/opportunity which has developed we would need to have a separate business plan developed.  It is of particular importance that the individual business plans take account of the overall Ankamuthi People’s wishes.”

  1. [10]
    The trust deed contemplated the appellant as trustee appointing by deed a steering committee comprised of five persons to represent the interest of the Ankamuthi Western Cape Community in respect of the trust.  A steering committee was appointed and there is a document dated 14 July 2010 which relevantly states:

“We the under name signatory of the Ankamuthi members of the Steering committee have appointed Larry Joe Woosup at Trustee and signatory to the Ankamuthi Western Cape Community Trust Bank Accounts and all dealings that matters and related to the Ankamuthi Western Cape Community Trust.”  (RB, volume 3, page 525).

  1. [11]
    On 22 May 2020, the appellant and Ms Tamwoy executed a document entitled “Gulf Alumina (Gulf) and Ankamuthi People – Agreed Outcomes from Meeting held on 21 and 22 May 2013”.  This document refers to negotiations that took place on 21 and 22 May 2013 between the appellant and Ms Tamwoy on behalf of the Ankamuthi People and representatives of Gulf Alumina.  An in-principle agreement was reached that the royalty payable would be fifty cents DBT.  This royalty rate had been previously rejected in the course of the 2010 negotiations.  An in-principle agreement was also reached that Gulf Alumina would make an advanced payment of $350,000.00 to the Ankamuthi Western Cape Community Trust “upon the execution of the s 31 Deed/Ancillary Agreement.”  The reference to s 31 is to s 31 of the Native Title Act 1993 (Cth) which deals with normal negotiation procedure for certain future acts done by the Commonwealth, a State or Territory including the conferral of mining rights.
  2. [12]
    I deal with the appellant’s evidence in more detail below, but in relation to the 2013 negotiations, the appellant’s evidence was that a representative of Gulf Alumina by reference to s 31 of the Native Title Act offered to negotiate directly with the registered native title claimants, namely the appellant and Ms Tamwoy.
  3. [13]
    The Agreed Outcomes document identified the “next steps”.  These included the Ankamuthi People and Gulf Alumina settling an Ancillary Agreement.  Gulf Alumina was to arrange the circulation of the s 31 Ancillary Agreement.  The Ankamuthi People were to arrange an authorisation meeting and the execution of the agreement in Cairns.
  4. [14]
    The appellant engaged Chalk and Fitzgerald Lawyers and Consultants for the purposes of these negotiations with Gulf Alumina.  Mr Beckett from Chalk and Fitzgerald provided two letters of advice to the appellant and Ms Tamwoy “on behalf of the Ankamuthi People” dated 24 May 2013 and 13 June 2013.  In the letter dated 24 May 2013, Mr Beckett referred to the immediate upfront payment of $350,000.00 to be made by Cape Alumina upon the execution of the agreement.  Mr Beckett stated:

“All of these monies are compensation to the Ankamuthi People for the affect of the proposed mining project on their collective native title.

In giving us instructions about this matter you are acting on behalf of – as agents for – the Ankamuthi People as a whole.  By law, you owe strict duties to the Ankamuthi people.

We receive our instructions in relation to this matter from you on behalf of the whole Ankamuthi claim group.  As legal advisors, we owe duties not just to you personally, but also to the claim group as a whole.  We expect that we will be asked to attend the authorisation meeting for this agreement to stand up and advise all members of the group who attend.

In addition, you have previously instructed, and on that basis we have assured not only Cape York Land Council Aboriginal Corporation (and its advisors) but also the Federal Court, that the agreement being negotiated will be not only for the benefit of the native title claim group as it is presently defined, but also for the benefit of:

  • any further people who may be added to the claim group if and when the clam is amended (and for that purpose we have been pursuing on your behalf access to all of the anthropological material commissioned by Cape York Land Council), and
  • any further people who the Court may ultimately determine are common law native title holders.

Given these assurances, you are obliged to make sure that the agreement will in fact be for the benefit of this larger group.”

  1. [15]
    It would appear that neither the appellant nor Ms Tamwoy accepted the advice in the letter of 24 May 2013.  This is evident from Mr Beckett’s letter of 13 June 2013:

“I have done my best to explain to you, and invite further discussion about, why we consider it is essential that we be able to provide you with advice about the manner in which the anticipated payments from Gulf Alumina Ltd (‘Gulf’) are held and applied. … In fact, Larry has advised in one email that the matter of how the payments will be held and applied is for he alone to determine.  Beverley advised me in a telephone conversation that she thought our advice would be useful.  This was, however, followed by the most recent email from Larry advising me that the two of you have discussed the matter and reiterating that you do not want any advice about it.”

  1. [16]
    Chalk and Fitzgerald had been acting for the appellant and Ms Tamwoy in the native title proceedings in the Federal Court.  On 13 June 2012, they filed a notice of intention to cease to act.
  2. [17]
    On 4 December 2013, the appellant and Ms Tamwoy executed both the 2013 Agreement and a Deed Regarding the Addition of a Specified Mineral to Mining Leases between the State of Queensland, Gulf Alumina and “Beverley Tamwoy, Larry Woosup, Silas Woosup, Arthur Woosup and Robert Dick (a “native title party”) on their own behalf and on behalf of the Ankamuthi people (a “native title claim group”)”.
  3. [18]
    The 2013 Agreement was between Gulf Alumina and the “registered claimants”:  Beverley Tamwoy (nee Mamoosa), Larry Woosup and Robert Dick on their own behalf and on behalf of the Ankamuthi people.  Mr Dick had died by 4 December 2013.  The 2013 Agreement is in terms with the “registered claimants”.  As already observed as at 4 December 2013, there were only two registered claimants, namely the appellant and Ms Tamwoy.
  4. [19]
    The 2013 Agreement by way of background refers to the following facts:

“E. The Ankamuthi People assert traditional rights and interests including native title in an area of land and waters that includes the Project Area.

F. The Registered Claimants are the living members of the Applicant, which has made the Ankamuthi Native Title Claim on behalf of the Ankamuthi People over some but not all of the area in relation to which the Ankamuthi People assert native title.

G. Gulf Alumina and the Registered Claimants enter into this Agreement for the purposes of section 31 NTA.”

  1. [20]
    The 2013 Agreement defines the “Ankamuthi Native Title Claim” to mean the application for a determination of native title made in the Federal Court proceedings QUD 6158 of 1998 including any amendment to that application.  The 2013 Agreement also defines “Ankamuthi People” to mean “the native title group in the Ankamuthi Native Title Claim.”  Clause 9(a) of the Ancillary Agreement provides that the parties acknowledge that the registered native title claimants enter the agreement on behalf of the Ankamuthi People and for the benefit of the traditional owners.
  2. [21]
    The Deed defines the native title party to be the registered native title claimants on behalf of the native title claim group in relation to land or waters that would be affected by future acts.  The Deed was executed by the representatives of Gulf Alumina on 4 December 2013 as well as the appellant and Ms Tamwoy.  The Deed was executed by the Minister for Natural Resources and Mines on 20 January 2014 on behalf of the State of Queensland as represented by the Department of Natural Resources and Mines.
  3. [22]
    On or about 28 January 2014, the appellant established an account with the Commonwealth Bank in the name of “Larry Joe Woosup as trustees for Ankamuthi Western Cape Community Trust, the SRBP Agreement Fund”.  The account had an overdraft facility which the appellant utilised sending it into debit of $110,000.00.  He withdrew $50,000.00 on 29 January 2014, another $50,000.00 on 31 January 2014 and $10,000.00 on 10 February 2014.
  4. [23]
    On 24 February 2014, Gulf Alumina sent to the appellant a cheque for $95,000.00.  On 27 February 2014, the appellant opened an account with Queensland Country Credit Union Trust in his name as trustee for Ankamuthi Western Cape Community Trust.  The cheque of $95,000.00 was deposited into this trust account.
  5. [24]
    The prosecution called a number of community members from Ankamuthi country.  Most of these witnesses were part of the native title claim registered in 2014.  They gave uniform evidence that they were unaware of the 2013 Agreement.  Their evidence was that the “process” to negotiate with mining companies was to select a person from each of the family groups who would go forward and represent them and that person would come back to the community so that all the families could then meet to discuss whether to go ahead with a negotiation or not.  The majority of these witnesses accepted the appellant’s belief about the accepted traditional custom, namely that authority was passed down on the male side and that his father was a senior lore man.
  6. [25]
    The prosecution also called Ms Tamwoy who was one of the original native title claimants.  Her evidence was that a mining company would usually come to the registered native title claimants prior to any negotiation with the whole of the communities of Ankamuthi people.  Ms Tamwoy stated that when they had community meetings “not much people attend meetings”.  She recalls that when the 2013 Agreement was negotiated meetings were held by the community:

“What about when you negotiated with Cape Alumina.  Did you go back to the community and have meetings? … Yes.  We had that agreement in the community with the whole Ankamuthi people.  We signed the agreement: me and Larry and all the other directors. …So with Cape Alumina you went and spoke with the community? … Yes.  We signed the agreement within the community.”

  1. [26]
    In cross-examination when asked about the 2013 Agreement, Ms Tamwoy recalled travelling to Cairns with other family members and other Ankamuthi people.  At this meeting a presentation was made regarding the 2013 Agreement.  The meeting was held over a four day period.  (RB 260, line 44 – RB 261, line 9).
  2. [27]
    The prosecution called Peter Callaghan, the CEO of the Cape York Land Council Aboriginal Corporation.  The effect of his evidence was that the Ankamuthi people included the “wider group” and, that in his opinion, “the negotiation should have occurred on behalf of the wider group”.  (RB 241).

The appellant’s evidence

  1. [28]
    The appellant, together with his father, who was an initiated lore man, was one of the original registered native title claimants.  The claim was lodged in 1998 together with anthropological evidence confirming that the five named people on the claim had “a legitimate claim”.
  2. [29]
    He recalled that at the initial meetings with Gulf Alumina in 2008 to 2010 other Ankamuthi persons, who had not made a native title claim, were represented by the Cape York Land Council.
  3. [30]
    The appellant recalled a disagreement between the CEO of the Cape York Land Council and representatives of Gulf Alumina.  A representative of Gulf Alumina made specific reference to s 31of the Native Title Act which deals with the negotiation procedure in relation to future acts.  By reference to this section, the representative of Gulf Alumina said words to the effect that the company could deal directly with the registered native title claimants.
  4. [31]
    Thereafter, the appellant engaged Mr Wone, as well as Chalk and Fitzgerald.  The appellant did not have a good relationship with the Cape York Land Council and did not seek its assistance.  In negotiating the 2013 Agreement, the appellant considered himself negotiating on behalf of the registered native title claimants representing the five apical ancestor families.  As part of the process of signing the 2013 Agreement, cultural surveying was undertaken.  Families were flown from Cape York, Torres Strait and surrounding areas for the signing of the agreement.  According to the appellant this involved approximately 20 people and extended over the course of four days.  The appellant stated that everyone supported entering into the agreement and no one objected.  All persons who participated in the four day meeting had been given a copy of the agreement prior to it being signed.
  5. [32]
    While the appellant was aware that other persons were seeking to become native title claimants which involved a much larger group, the appellant considered that this claim was based on an “unfinished connection report”.  It was, according to the appellant, “just anybody in the bucket”. (RB, 363 lines 29 – 34).  There was a lot of conflict between the communities in the northern Cape regarding who was recognised as Ankamuthi people.  This conflict led to an incident of violence towards the appellant and his family which required his brother to be hospitalised.  This conflict still persists.
  6. [33]
    In conducting the meetings for the registered native title claimants for the purposes of the 2013 Agreement, the appellant was satisfied that he had all the appropriate people at those meetings.  (RB 364, lines 35 – 38).
  7. [34]
    In cross-examination, the appellant reiterated that in negotiating the 2013 Agreement he represented “the people who were part of that original claim”.  (RB 366, lines 13 – 14).
  8. [35]
    When asked whether he was acting on behalf of the Ankamuthi people in 2013, the following exchange occurred:

“So in 2013 – in May 2013 you knew that you were acting on behalf of the Ankamuthi people?--- Yes, I did. 

And that’s not just the five families that you recognise; that’s the Ankamuthi people?--- Can I just re-enter on this here.  This is a misconception.  The five [Ankamuthi] ancestor were the regional people that was part of this – this – this trust document.  We weren’t talking about talking about the wider group.  They didn’t exist until 2014.

Are you telling me that the community of Ankamuthi people did not exist until 2014?--- That’s right.  On the wider group.  This the group that – of five apical ancestor as – because we got descendant family come out of that, and this became a group of Ankamuthi people from prior that five apical ancestor.  That exist before the – the 2014 when every Johnny-come-lately jump on board.”  (RB 370, line 20 – line 32).

  1. [36]
    The appellant’s consistent response in cross-examination was that when documents refer to him as a native title claimant acting on behalf of the Ankamuthi people, he believed he was acting for the five apical ancestor families recognised in the connection report underlying the native title determination claim registered in 1998.  No other claim had been registered as at the time he entered into the 2013 Agreement.  According to the appellant, his focus was to pursue the agreement on behalf of the original claim.  (RB 383, lines 4 – 7).  In doing so, he considered that he was following “traditional law and customary decision–making process here” and “a mandate from [his] father”.  (RB 385, lines 16 – 32).  Further, he did not follow the Chalk and Fitzgerald advice because he believed he was practising and exercising his traditional rights and interest.
  2. [37]
    At the time he signed the 2013 Agreement, the new claimants had not “even passed a registration test”.  (RB 430, lines 39 – 42).  Further, at the time of entering into the 2013 Agreement the five apical ancestor families had been recognised by his father who was the most senior initiated man of his time and this had been confirmed by the anthropologist, Dr Fiona Powell.  (RB 431 – RB 434).

The impugned direction

  1. [38]
    The learned trial judge provided the jury with a question trail which in relation to the element of dishonesty for both counts 1 and 2 read as follows:

“2. Are you satisfied beyond reasonable doubt that the defendant acted dishonestly?

To prove that the defendant acted dishonestly the prosecution must satisfy you, beyond reasonable doubt, that what the defendant did was dishonest by the standards of ordinary honest people.

In this case, the prosecution says that the defendant acted with a certain state of mind with the knowledge, belief or intent which it is alleged the defendant held, identified by the judge.

You are to consider whether, by acting with that state of mind including in this case his claimed right of entitlement to do what he did, the defendant was acting dishonestly by the standards of ordinary honest people.  This is to be determined by considering the defendant’s subjective state of mind, then determine dishonesty objectively – not by the defendant’s standards, but by the standards of ordinary, honest people.”

  1. [39]
    By reference to the question trail, his Honour directed the jury as follows:

“Now, its important to bear in mind the law that Ive set out there.  To prove that the defendant acted dishonestly, the prosecution must satisfy you beyond reasonable doubt that what the defendant did was dishonest by the standards of ordinary, honest people.  In this case, the prosecution says that the defendant acted with a certain state of mind with the knowledge, belief or intent which it is alleged the defendant held.  And, as I say, these are identified by the judge.  Well, Im going to give you another document marked Ufor identification.  Its headed Contentions of Defendants Knowledge, Belief and Intent.  Again, this has been referred to you by Ms Georgouras since its her contentions.  And these are the things that are sought to be relied upon.  Now, dont be fooled by the and” – “its knowledge, belief and intent”; its read as or.  So it can be any one or a number, or a combination even, of those things listed from 1 to 11, that the prosecution are relying on.

So, the first is, the defendant knew this is the contention by the Crown the defendant knew there were an extra five apical ancestor groups challenging the native title claim in 2010, and there were those other five family groups who were claiming native title over Ankamuthi country by 2013.

2. The defendant was advised by the solicitors in a letter dated the 24th of May 2013 that the agreement being negotiated with Gulf Alumina should and its quoted – “not only be for the benefit of the native title group as it was then defined, but also for the benefit of any further people who may be added to the claim group if and when the claim is amended.  And you will find that document in exhibit 2.  I think its about page 31, 32, thereabouts.

Then the third contention by the prosecution is the defendant knew that authorisation meetings were required to be held before entering into an agreement with mining companies.

4. The defendant agreed that Injinoo was a community in which an authorisation meeting would be held.

5. The defendant knew that representatives from each family group should attend the authorisation meetings.

6. The defendant had been involved in the following negotiations where the above customs were followed:

  1. (a)
    in 2001/2002 the defendant was present at meetings when Rio Tinto bought a mine at Vrilya Point from Comalco;
  1. (b)
    in 2005/2006 the defendant was a signatory with the Western Cape Communities Co-Existence Agreement;
  1. (c)
    in 2014 the defendant was present at community meetings for the early stages of negotiations with Metro Mining.

The seventh contention is the defendant contends that, under Ankamuthi tradition, negotiations occur with the rightful traditional owner, not the community in general.  By that I mean what Ms Georgouras is bringing to your attention is matters that the defendant has asserted which, as youve heard from her submission, she rejects but as being different to that which she contends.

8. The defendant says that the Cape York Land Council previously negotiated with Gulf Alumina from 2008, and those negotiations fell apart right before the start of 2013.

9. The defendant says that Cape York Land Council rejected the price of 50 cents per tonne.

10. The defendant agreed that, under the trustee, money from the trust should be spent on sustainable community development.  The defendant says that he had been spending that money on country for that purpose.

11. The defendant knew that, as the trustee, he was required to keep receipts.  The defendant contends that he lost receipts relating to the trust account and accepts that on occasion he did not obtain receipts.

Now, the next paragraph helps you then work out how to deal with that question, in 2, for the essential fact.  You are to consider whether, by acting with that state of mind, including in this case his claimed right of entitlement to do what he did, the defendant was acting dishonestly by the standards of ordinary, honest people.  This is to be determined by considering the defendants subjective state of mind that is, drawing on matters identified as to his knowledge, belief and intent or intent, I should say.  So thats him personally.  Then, you determine dishonesty objectively.  So that determination is not by the defendants standards.  But you then assess it by the standards of ordinary, honest people.

So, youd see the way that you first start, by working out the position of the defendant, personally, as to his knowledge, belief or intent.  And you draw on the document that the prosecution contend to be of assistance.  And then you make the assessment of that state of mind, as you find it, not on the defendants standards but on the standards of ordinary, honest people.”

  1. [40]
    The reference to “MFI-U” is to a document which was prepared by the prosecution and discussed in the course of the trial.  Copies of “MFI-U” were provided to the jury and the trial judge read out the eleven contentions stated in the document.  The contentions were not limited to the prosecution contentions supportive of guilt but included defence contentions including that, under Ankamuthi tradition, negotiations occur with the rightful traditional owner, not the community in general.  Apart from his Honour’s reference to the appellant’s “claimed right of entitlement to do what he did”, the direction in relation to dishonesty did not identify for the jury those matters relevant to the appellant’s subjective state of mind.  While his Honour referred to parts of the appellant’s subjective state of mind in summarising the rival contentions, the appellant’s evidence as to his subjective state of mind, with the one exception identified above, was not outlined to the jury.
  2. [41]
    In the course of the trial, there was some discussion of the application of s 22 of the Criminal Code in the context of the appellant having an honest claim of right.  The Crown prosecutor submitted that s 22 did not apply.  By reference to a number of cases, including R v Lyons [2021] QCA 136, R v Orchard [2018] QCA 58, R v Perrin [2018] 2 Qd R 174 and R v Dale [2012] QCA 303, the Crown prosecutor made the following submission:

“The distinction that I’m able to identify throughout the cases is that in a case where the prosecution identifies the intent or belief or knowledge of the defendant at the time that they did the act, in this particular case whether he knew that he was authorised or acting on behalf of the community which satisfies the element of dishonesty, then they must convict if they are satisfied of that, or acquit if not.” (RB 443, line 46 – RB 444, line 3).

  1. [42]
    It was conceded by the respondent that this does not constitute a correct statement of the law as discussed below.

Consideration

  1. [43]
    The appellant submitted that his Honour’s direction failed to adequately instruct the jury how to determine whether the appellant held the relevant knowledge, belief or intent.  While the jury was told to take into account the appellant’s “claimed right of entitlement to do what he did”, his Honour did not, in light of the appellant’s evidence, sufficiently identify what matters the jury should take into account in considering the appellant’s “claimed right of entitlement”.  Nor did the jury receive any directions as to how matters relevant to the appellant’s “claimed right of entitlement” were to be compared with the knowledge, belief or intent identified by the prosecution in “MFI-U”.
  2. [44]
    The directions necessary in any trial will depend on the individual circumstances of the case, including the issues in contest, the complexity of the issues and the length of the case: R v DBV [2021] QCA 227 per McMurdo JA.  In the present case, there were a number of complex issues relevant to the appellant’s subjective state of mind.  These included that at the time of entering into the 2013 Agreement, the appellant was one of only two surviving registered native title claimants in relation to the original 1998 claim.  That claim has passed the registration test for the purposes of the Native Title Act.  This was achieved by anthropological evidence and confirmed by the appellant’s father, as the only initiated lore man of the Ankamuthi people.  It was the appellant’s status as a registered native title claimant that permitted Gulf Alumina to enter into negotiations with him after the 2010 negotiations involving the Cape York Land Council collapsed.  The appellant’s evidence was that a representative of Gulf Alumina, by reference to s 31 of the Native Title Act, recognised that negotiations could be conducted with the appellant and Ms Tamwoy as the registered claimants.
  3. [45]
    In the course of deliberations, the jury sent a note to the trial judge enquiring about the negotiation process:

“Can we please be reminded or told if Gulf Alumina approached Larry Woosup and told him that under the Native Title Act they could negotiate directly with him, or did he approach Gulf Alumina once the previous negotiations with them in the wider community have fallen through”  (RB 134, line 26 – RB 139, line 38).

  1. [46]
    While the jury were provided with a summary of the relevant evidence on the issue, including evidence from the appellant, and were also reminded of the competing contentions on that issue, no additional or specific guidance was provided about those contentions and the element of dishonesty.[1]
  2. [47]
    In his evidence, the appellant repeatedly stated that in entering into the 2013 Agreement, he believed he was acting as a registered native title claimant on behalf of the five original apical ancestor families.  A copy of the agreement was provided to these families prior to it being executed and a four day meeting with presentations was conducted with representatives of these families prior to execution.  These representatives supported the agreement.
  3. [48]
    In entering into the agreement, the appellant had both accounting and legal advice albeit that he did not accept the legal advice.
  4. [49]
    Another relevant factor as to the appellant’s subjective belief is the fact that not only was the 2013 Agreement signed with Gulf Alumina, a deed was also executed with the State of Queensland and Gulf Alumina.  The relevant extracts from this deed are set out above.  The definitions in both the 2013 Agreement and the deed are generally supportive of the appellant’s belief that in entering into the 2013 Agreement and the deed, he was doing so as the registered native title claimant on behalf of the claimant group, namely the original five apical ancestor families.
  5. [50]
    This list of relevant matters concerning the appellant’s “claimed right of entitlement” is not exhaustive but is sufficient for the purposes of demonstrating the inadequacy of the direction given.
  6. [51]
    In the circumstances of the present case, the inadequacy of the direction resulted in a miscarriage of justice.  As correctly submitted by the appellant, his chances of an acquittal rested on his honest claim of right.  The evidence established that the appellant was entitled as a registered native title claimant to be a party both to the 2013 Agreement and to the deed pursuant to s 31 of the Native Title Act.  Further, at all relevant times, the appellant’s evidence was that he was acting in accordance with his traditional beliefs and customs.
  1. [52]
    APPLEGARTH J:  I joined in the orders made on 14 November 2022 and agree with the reasons of Flanagan JA.  Those reasons well explain why the focus on contentions 7 to 11 in the document headed “Contentions of Defendant’s Knowledge, Belief & Intent” (MFI-U) did not identify the matters that the appellant relied upon as his “claimed right of entitlement to do what he did”.  They did not sufficiently capture what he claimed to be his state of mind at the time of entering into the agreement.
  2. [53]
    The use of MFI-U as a summary of the parties’ respective contentions about the appellant’s state of mind may be understandable.  Unfortunately, the document did not distil the appellant’s actual contentions, as explained in his evidence, and as summarised by Flanagan JA.  The fact that defence counsel who appeared at the trial permitted paragraphs 7 to 11 of the document to summarise the defence contentions is unfortunate.  They did not reflect what counsel had said to the jury, namely that the appellant “acted with an honest intention in accordance with the law and in accordance with the mandate his father gave him to look after the Ankamuthi people as he recognised them back in 2013 and the traditional lands” (RB 39, Lines 35-37).
  3. [54]
    Those five paragraphs did not capture what the appellant said he believed about his authority to enter the agreement or his claimed entitlement to act pursuant to s 31 of the Native Title Act.
  4. [55]
    As a result, a direction that invited the jury to draw upon the matters identified in MFI-U as to the appellant’s knowledge, belief or intent in order to determine his subjective state of mind, did not direct the jury to matters that the evidence suggested he may have believed.  Nor did the direction sufficiently identify “his claimed right of entitlement to do what he did”.

Footnotes

[1]Appellant’s outline of argument, paragraph 31.

Close

Editorial Notes

  • Published Case Name:

    R v Woosup

  • Shortened Case Name:

    R v Woosup

  • MNC:

    [2022] QCA 270

  • Court:

    QCA

  • Judge(s):

    Morrison JA, Flanagan JA, Applegarth J

  • Date:

    23 Dec 2022

Litigation History

EventCitation or FileDateNotes
Primary JudgmentDC90/19 (No citation)04 Nov 2021Conviction (Morzone QC DCJ and jury) (sentenced at [2021] QDCSR 1429)
Notice of Appeal FiledFile Number: CA29/2211 Feb 2022-
Appeal Discontinued (QCA)File Number: CA29/2206 Sep 2022Sentence application abandoned
Appeal Determined (QCA)CA29/22 (No citation)14 Nov 2022Orders
Appeal Determined (QCA)[2022] QCA 27023 Dec 2022Reasons

Appeal Status

Appeal Determined (QCA)

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